Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 16 April 2016.
John died without making a formal will. After John’s death however, his brother discovers that John had recorded his testamentary wishes in writing on the “Notes” application on his iPhone.
His brother, with significant legal assistance, was ultimately able to obtain probate of the “electronic copy of the Will” but the wording of the “Notes” created some additional problems.
John’s estate included funds that were received from banks, superannuation, a life insurance policy and employee entitlements. The death benefit payable under his superannuation policy amounted to $260,000.
John’s will made gifts of his video games to named persons and left his house to his parents. His will went on to leave “the remainder of my cash” to five beneficiaries and “anything else” was to go to his executor.
One of the five beneficiaries of the “cash” argues that the superannuation proceeds constitute a cash benefit and accordingly, he should receive a share.
The executor seeks advice from the Supreme Court as to whether superannuation, employment benefits and life insurance proceeds should be considered “cash”.
The court considers evidence adduced by the various parties and the general principles regarding the “construction” of a will.
The court ultimately rules that John did not intend these additional sums to constitute “cash” and that the funds should be caught by the “catch-all section of the will” leaving everything else to his executor.
The court did however rule that a small amount of wages that were paid after his death, did in fact constitute “cash”.
The substantial costs involved in obtaining probate over an electronic informal will and in the construction process were paid from the catch-all section of the will.
If John had made a formal will, it would have been clear as to what his intentions were regarding the distribution of his estate and a considerable amount of legal costs would have been avoided.
